IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.1559 of 2003 (O.&M.)
Date of Decision: 18.5.2009
Lakha Singh.
....... Appellant through Shri
Deepak Thapar,Advocate.
Versus
Amar Singh (since deceased) through L.Rs. and another.
....... None for L.Rs. of
Respondent No.1
Respondent no.2 through
Shri Vijay Sharma, Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This Regular Second Appeal is directed against judgments and
decrees dated 10.1.2000 passed by the Civil Judge (Junior Division),
Patiala (hereinafter described as `the trial Court’) and the Additional District
Judge, Patiala (referred to hereinafter as `the First Appellate Court’)
whereby the suit and the appeal of the plaintiff-appellant have been
dismissed.
Initially, a suit for declaration and permanent injunction was
filed by the appellant against Amar Singh, since deceased and now
represented by his legal representatives. Upon notice, Amar Singh had
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appeared and filed his written statement pleading therein that Sucha Singh
was a necessary party and since he had not been impleaded, the suit was not
maintainable.
Thereafter, on an application moved by Sucha Singh under
Order 1 Rule 10 of the C.P.C., he was impleaded as defendant no.2 in the
suit.
The appellant also sought amendment of the plaint by moving
an application under Order 6 Rule 17 of the C.P.C. which was allowed. In
his amended plaint, he prayed for a decree of declaration to the effect that
he is owner in possession of the suit land by way of adverse possession and
Amar Singh son of Mam Raj (since deceased) through his legal
representatives and Sucha Singh -defendant/respondent no.2 had no concern
or connection with it as there was no relationship of tenant and landlord
between them. A decree for permanent injunction was also sought
restraining Amar Singh and Sucha Singh, their servants or agents from
taking forcible possession of the suit land from the appellant or
dispossessing him therefrom illegally or forcibly or under the execution of
judgment and decree dated 30.8.1995 passed by Assistant Collector Ist
Grade, Patiala (for short, `the ACIG’). Still further, the appellant had prayed
that Amar Singh and Sucha Singh or their servants and agents be restrained
from alienating the suit land in any manner in favour of any person or from
creating any charge or encumbrance thereon.
It was pleaded by the appellant that he was in actual cultivating
physical and continuous possession of the suit land since 1949 without any
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payment of chakota or batai to Amar Singh and Sucha Singh and, therefore,
his possession is open, continuous, hostile and to their knowledge. It was
further pleaded that he had become owner of the suit land by way of adverse
possession and Amar Singh & Sucha Singh had no concern therewith. It
was alleged that Amar Singh & Sucha Singh were claiming ownership of
the suit land on the basis of wrong revenue entries which were got made by
them on the basis of judgment and decree dated 11.5.1972 which were never
passed by a Civil Court and if that was so, the said judgment and decree
were illegal, null & void and did not confer any title qua the suit land in
their favour. It was further alleged that the said judgment and decree were
the result of collusion of Amar Singh with the Sarpanch of the Gram
Panchayat of the village. The appellant had pleaded that the subsequent sale
deed dated 27.9.1990 allegedly executed by Amar Singh in favour of Sucha
Singh was also null & void and was a false and fabricated document. He
further pleaded that Amar Singh & Sucha Singh were claiming possession
of the suit land since 1974 and he he had been denying their claim ever
since. It was averred that the entries in column no.9 of the jamabandis for
the years 1974-75 and 1979-80 and those in column no.3 of khasra
girdawari for the period 21.10.1975 to 26.3.1981 showing him as paying
chakota at the rate of Rs.20/- per acre per year were illegal, null & void and
without any basis. It was alleged that judgment and decree dated 30.8.1985
of the ACIG which were passed in favour of Amar Singh & Sucha Singh
were illegal, null & void and without jurisdiction and were not binding on
the appellant. Similarly, he alleged that the judgments and decrees passed
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by the Collector, Patiala; Commissioner, Patiala and Financial
Commissioner dismissing his appeal and revision were illegal & void and
were liable to be set aside as they were not binding upon him and that the
findings recorded by the revenue courts regarding relationship of tenant
and landlord were not binding upon the Civil Court.
In his written statement, Amar Singh had pleaded that the
appellant was a tenant of the Gram Panchayat and thereafter, the suit land
vested in him by virtue of decree dated 11.5.1972 passed by the Civil
Court. It was averred that an appeal was filed on 15.3.1978 in the Court
of D.D.P.O., Patiala which was dismissed on 24.1.1980. It was further
averred that on 1.8.1984, the Gram Panchayat had again filed appeal before
the D.D.P.O., Patiala which was dismissed on 3.6.1987. Amar Singh had
alleged that since the appellant had not paid chakota or batai to him,
eviction proceedings were initiated on account of non-payment of rent and
other grounds and that the ejectment of the appellant was ordered from the
suit land which was confirmed by the Collector, the Commissioner and the
Financial Commissioner and that the orders passed by the revenue
authorities were perfectly correct. He had further alleged that the orders of
the revenue authorities could not be challenged in the Civil Court and that
the material facts have been concealed by the appellant. It was averred that
the suit land was transferred to Sucha Singh on 27.9.1990, who had become
owner of the land measuring 236 kanals which included the suit land as
well . It was further averred that he had executed an agreement to sell in
favour of Sucha Singh to sell his whole land; that Sucha Singh had filed a
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suit for specific performance which was decreed on 1.3.1990 and the appeal
against the said decree was got dismissed as withdrawn being compromised
and thereafter the sale deed was executed on 27.9.1990. It was pleaded that
since ejectment of the appellant had been ordered, he had no right to retain
the possession of the suit land.
In his written statement, Sucha Singh had also taken similar
pleas as had been taken by Amar Singh.
The parties went to trial on the following issues:-
1. Whether the plaintiff is owner in possession of the land in
suit?OPP
2. Whether the judgment and decree dated 30.8.85 passed by
Shri S.K.Ahluwalia, Assistant Collector Ist grade, Patiala are
illegal, null and void and are without jurisdiction and are
unexecutable and are not binding upon the plaintiff?OPP
3. Whether the plaintiff is entitled to declaration and injunction
as prayed for?OPP
4. Whether the suit is not maintainable in the present
form?OPD
5. Whether this Court has got no jurisdiction to try the present
suit?OPD
6. Whether the suit is barred by time?OPD
7. Whether the plaintiff has no locus standi to file the present
suit?OPD
8. Whether the plaintiff has become owner by way of adverse
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possession?OPD
8A. Whether the judgment and decree dated 23.12.86 passed
by Shri Bhupinder Singh, PCS, Collector and judgment and
order dated 9.3.1994 passed by Shri V.N.Ojha, I.A.S.,
Commissioner and that of Shri Kamal Nain Singh, I.A.S.,
Financial Commissioner, Chandigarh are illegal,null and
void, without jurisdiction and are unexecutable, if so, its
effect?OPP
8B. Whether defendant no.1 had become owner of suit land
by virtue of civil Court decree dated 11.5.1972 passed by the
Court of Shri G.S.Bhatti, Sub Judge IInd Class, Patiala, if so,
its effect?OPD
9. Relief.
After appraisal of the entire evidence on record, the trial Court
concluded that the appellant had failed to substantiate his plea of adverse
possession and that since there was a valid sale deed in favour of Such
Singh, his ownership could not be established. It was also concluded that
since the appellant had lost his battle before the revenue authorities, his
eviction as a natural corollary had to follow. Consequently, the suit of the
appellant was dismissed.
In appeal, the findings recorded by the trial Court were affirmed
by the First Appellate Court.
This has resulted in the filing of the present Regular Second
Appeal.
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Learned counsel for the appellant has contended that the decree
dated 11.5.1972 of the Civil Court is erroneous and is liable to be set aside.
He submitted that in fact, there is no decree at all. It was further submitted
that since the ownership of Amar Singh qua the suit land was seriously in
doubt, he could not have transferred the same in favour of Sucha Singh. On
the basis of these contentions, he prayed for setting of the impugned
judgments and decrees.
On the other hand, learned counsel for respondent no.2
contended that decree dated 11.5.1972 was validly passed in favour of Amar
Singh and the appellant was precluded from challenging the same at this
point of time as it was within his knowledge all throughout. He further
contended that the competent revenue authorities have already determined
the issue of eviction of the appellant from the suit land and those orders
cannot be challenged before the Civil Court on account of lack of
jurisdiction. It was submitted that the Courts below have rightly concluded
that the appellant had no right to remain in possession of the suit land and
that his plea of adverse possession was not established.
I have given my thoughtful consideration to the rival
contentions/ submissions and have perused the impugned judgments.
The appellant’s case is that there is no decree dated 11.5.1972.
However, this plea has to be rejected outrightly. The appellant is
acknowledging the decree dated 11.5.1972 and has also challenged the
entries made in the revenue record on its basis. The revenue entries were in
the knowledge of the appellant and, therefore, he ought to have challenged
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the same at the earliest point of time. He rather unsuccessfully contested the
proceedings before the revenue authorities which pertained to his eviction
on the ground of non-payment of rent etc. All these entries were upheld
from the Court of first instance, i.e., ACIG, up to the level of this Court.
After having unsuccessfully contested these proceedings, he resorted to the
filing of the instant suit in which he challenged decree dated 11.5.1972. In
the meanwhile, the suit land had already been sold to Sucha Singh-
respondent no.2, who has contested this appeal. The sale deed in his favour
was executed on 27.9.1990, whereas the suit was filed in the year 2000. It is
apparent that the appellant was in the know of the decree of 1972
throughout, but he never made any attempt to challenge the same. The
proceedings before the revenue authorities which have been contested by
the appellant shows concerted efforts of Amar Singh and respondent no.2
to get the suit land vacated and, therefore, it cannot be said that even the
possession of the appellant was hostile to the knowledge of the true owners.
Therefore, looking at it from any angle, the appellant has no right to the suit
land after having contested the eviction proceedings against him
unsuccessfully.
The following questions of law have been formulated by the
learned counsel for the appellant in paragraph 13 of the grounds of appeal,
which in my opinion, do not arise for determination by this Court as the
Courts below have decided purely questions of fact and their findings do
not warrant any interference:-
1. Whether can a defendant in a suit claim title to a property of
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a third party viz-a-viz plaintiff on the basis of an alleged
decree in his favour, alleged to have been suffeed by that
third party without producing and proving on record the said
alleged decree, when the onus to prove is on him?
2. Whether the onus to prove the plea as to title to the property
claimed by defendant/respondent on the basis of a Civil
Court judgment and decree stands discharged even if that
judgment and decree is not proved on record, and is it for the
plaintiff/appellant to prove in the negative?
3. Whether the orders/ decrees of Revenue Courts based on
alleged Civil Court decree could be challenged in a
subsequent suit and are null and void and cannot be made
basis of a claim when the party claiming under that decree
fails to prove the said decree?
4. Whether can a party to a suit against the other claim title to
the property of a third person on the basis of a decree alleged
to have been suffered on by that third party without
producing and proving the same on record?
The aforesaid questions, in any eventuality, could have been
answered if the decree dated 11.5.1972 was challenged within the period of
limitation prescribed and since the suit was filed belatedly, even though the
appellant had knowledge of the same, the challenge to it had to be negatived
on this ground alone. Besides, even if, it was to be accepted that challenge
was maintainable, then also, it was for the appellant to show that the decree
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was bad on the grounds on which it had been so alleged.
Consequently, this appeal is dismissed being devoid of any merit.
May 18,2009 ( Mahesh Grover ) "SCM" Judge